Summary of a Recent
Judicial Development in
Environmental Law

Decision to Permit Cooperative Farming and Genetically Modified Crops
on Wildlife Refuge Was Arbitrary and Capricious

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Delaware Audubon Society, Inc. v. Secretary of the United States Department of Interior, No. 06-223-GMS, 2009 WL 763925 (D. Del. Mar. 24, 2009), the United States District Court for the District of Delaware held that the United States Fish and Wildlife Service had acted arbitrarily and capriciously in failing to conduct environmental assessments or compatibility determinations prior to entering into cooperative farming agreements and allowing the farming of genetically modified crops on wildlife refuge land.

Background

Plaintiff environmental organizations brought this action seeking declaratory and injunctive relief against the United States Fish and Wildlife Service (FWS), alleging that the defendants violated the Administrative Procedures Act (APA), the National Wildlife Refuge System Administration Act (NWRSAA), and the National Environmental Policy Act (NEPA) by allowing cooperative farming and farming with genetically modified crops to take place at the Prime Hook national wildlife refuge in Delaware. Id. at *1. Prime Hook had entered into several cooperative farming agreements from 1995-2007 allowing farmers to harvest commodity corn or soybean crops in return for doing certain work on the land, but the defendants had not made any compatibility determinations or studies to assess whether those uses were "compatible" with Prime Hook's purposes. Id. The defendants had also allowed 150 acres of agricultural land at Prime Hook to return to a natural vegetative state as part of a grassland breeding bird survey and an inventory of flora and fauna conducted by the State of Delaware, but when the study concluded they re-authorized the acreage for agricultural use without first determining whether such use was "compatible." Id. In 2001, the FWS adopted a policy that prohibited the use of genetically modified crops or organisms, but had repeatedly made exceptions to the policy by continuing to allow genetically modified crops to be planted on Prime Hook, despite evidence that the activities posed "significant environmental risks." Id. at *2. In sum, the FWS did not conduct any NEPA environmental assessments, make any compatibility determinations, or prepare any environmental impact statements to assess the impact of private farming or the impact of genetically modified crops. Id. at *2. The defendants claimed the leases had expired and farming at Prime Hook had ceased as of December 2006, pending further analysis. Id.

Arguments

The plaintiffs argued they were entitled to summary judgment as it was undisputed that the FWS had failed to make written compatibility determinations before entering into any of the cooperative farming agreements, failed to make a written compatibility determination before allowing the resumption of farming on the 150 acres, and failed to prepare an environmental impact statement or an environmental assessment before allowing the farming of genetically modified crops. Id. at *3. The plaintiffs claimed that this conduct was arbitrary and capricious in violation of the APA. Id.

The defendants argued that the plaintiffs' claims should be dismissed as moot because farming activities at Prime Hook had ceased as of December 2006 and would not recur until the necessary compatibility determinations, environmental assessments, and environmental impact statements were completed, and therefore there was no "live" controversy. Id.

Analysis and Holdings

The court explained, "[w]hen a party voluntarily ceases a challenged activity, the court should only find the action moot if it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'" Id. at *4 (quoting Friends of the Earth v. Laidlaw Envt'l Serv, Inc., 528 U.S. at 191(2000)). Specifically, a claim is not rendered moot where the defendant ceases its conduct for strategic reasons such as avoiding litigation. Id. The court determined that such was the case here, and also was not convinced that the challenged activities would not resume in the future; therefore, the court held that the plaintiffs' claims were not moot. Id. at *5. The court also agreed that there were no genuine issues of material fact in dispute and granted the plaintiffs' motion for summary judgment. Id. at *7-8. After weighing the appropriate factors, the court also granted the plaintiffs' motion for injunctive relief. Id. at *9.

The case was decided on March 24, 2009.